Hele On: Courts Rule in Favor of Honolulu Rail

Two federal court rulings Tuesday all but assured Honolulu’s $5.2 billion rail project will be built between East Kapolei and Ala Moana Center.

Not only did judges in the U.S. District Court of Hawaii and 9th U.S. Circuit Court of Appeals find that the project complied with federal law, but the plaintiffs in the cases, who have been fighting against rail for decades, have said they don’t plan to appeal the decisions.

“We’ve said for the last two to three years that the last thing that was open to us, short of laying down on the rails, was the legal issue,” Cliff Slater, a lead plaintiff in the rail lawsuit, told journalists. “I’m getting way too old to be laying down on the rails.”

Slater and other plaintiffs, including former Gov. Ben Cayetano and University of Hawaii law professor Randy Roth, filed their lawsuit in May 2011, arguing that other transit options, such as managed bus lanes, should have been considered to ease Oahu’s traffic congestion rather than rail.

But while Tuesday’s rulings should end much of the debate over the merits of the project, questions are now turning to whether rail — which is Hawaii’s largest public works project — can truly come in “on time and on budget.”

That’s the phrase that Honolulu Authority for Rapid Transportation officials often use when talking about construction. So do Honolulu Mayor Kirk Caldwell and his staff.

HART Executive Director and CEO Dan Grabauskas evoked the catchphrase again Tuesday during a press conference to discuss the judicial rulings.

Grabauskas said the courts have allowed the project to move ahead without any more “legal wrangling,” which should help eliminate some unnecessary spending associated with the project.

“Work stoppages mean extra cost,” he said. “At this point in time, the extra cost that we’ve paid, which has been millions of dollars, has been for nothing. … We really do need to move on so we can stay on budget and on schedule.”

Delay costs as a result of litigation have added up to at least $78 million, according to HART officials latest estimates. The bill for outside attorneys has boosted that figure by an additional $3 million, meaning the city and HART have incurred at least $81 million in costs related to litigation.

But while it might be easy to point the finger at the plaintiffs, city and state officials are also to blame for cutting corners during the planning stage of the project.

For instance, the Hawaii Supreme Court found in August 2012 that the city and state didn’t follow the law when it began building rail columns in West Oahu before completing archaeological survey work that was required to help identify and protect Native Hawaiian burials along the proposed rail line.

The high court’s ruling halted construction for a year as workers completed the archaeological surveys, resulting in millions of dollars in delay claims that needed to be paid out to contractors. At one point, it was estimated that every month of delays would cost the project between $7 million and $10 million.

U.S. District Court Judge A. Wallace Tashima didn’t absolve the city or FTA of all blame. In fact, the judge issued a split decision in November 2012 that forced the city to redo some of its environmental assessments as well as identify any traditional cultural properties.

Until this work was satisfactorily completed, Tashima said the city could not progress with work in Phase 4 of the project, which includes the city center and downtown.

Tashima’s injunction — which was lifted with Tuesday’s ruling — prevented the city from moving ahead with property acquisition in these areas, leading to further delays.

“We’re already behind,” Grabauskas said, “but I think we can make up that lost time.”

The entire rail system is projected to be up and running by 2019, with the first section between Kapolei and Aloha Stadium opening in 2017.

HART also has a contingency fund it can rely on for any possible cost overruns, such as a recent $4.25 million redesign of its maintenance and storage facility.

That fund held more than $650 million, but it has been drawn down over the past several months and is closer to $610 million, according to HART’s January progress report.

But the plaintiffs in the federal rail suit don’t think that’s going to be enough money, predicting the project will run into major fiscal snafus once construction moves downtown.

And when it does, Cayetano told Civil Beat, that’s when citizens need to hold their elected officials accountable, because there is a risk that costs will increase not by millions but by billions.

In particular, he called for voters to have a referendum on any politicians who don’t “have the guts to stand up to the unions” that wanted to see the rail project built.

“The (legal fight) is over and the city should do whatever it takes to make the thing work,” Cayetano said. “But if history is any indication, this thing is going to be a boondoggle, and I think the politicians who couldn’t stand the heat should be held accountable.”

Cayetano lost his bid to become Honolulu mayor in November 2012. He ran on an anti-rail platform and promised to kill the project if elected.

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